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Public Act 094-0955 |
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AN ACT concerning criminal law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 1. Purpose. | ||||
(a) This Act is not intended to make any substantive change
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in the law. It reconciles conflicts that have arisen from
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multiple amendments and enactments made to Section 29B-1 of the | ||||
Criminal Code of 1961 by Public Acts 94-364 and 94-556.
It also | ||||
makes a technical correction in subdivision (l)(3) of that | ||||
Section. | ||||
(b) In this Act, the reference at the end of Section 29B-1 | ||||
of the Criminal Code of 1961 indicates the sources in the | ||||
Session Laws of Illinois
that were used in the preparation of | ||||
the text of that Section.
The text of Section 29B-1 included in | ||||
this Act is intended to
include the different versions of that | ||||
Section found in the
Public Acts included in the list of | ||||
sources, but may not
include other versions of the Section to | ||||
be found in Public
Acts not included in the list of sources. | ||||
The list of sources
is not a part of the text of the Section.
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Except for the one technical correction made in subdivision | ||||
(l)(3), the text of Section 29B-1 contains no striking or
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underscoring because no other changes are being made in the | ||||
material that is being combined. | ||||
Section 5. The Criminal Code of 1961 is amended by changing | ||||
Section 29B-1 as follows:
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(720 ILCS 5/29B-1) (from Ch. 38, par. 29B-1)
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Sec. 29B-1. (a) A person commits the offense of money | ||||
laundering:
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(1) when, knowing that the property involved in a | ||||
financial transaction represents the proceeds of some form | ||||
of unlawful activity, he or she conducts or attempts to |
conduct such a financial transaction which in fact involves | ||
criminally derived property: | ||
(A) with the intent to promote the carrying on of | ||
the unlawful activity from which the criminally | ||
derived property was obtained; or | ||
(B) where he or she knows or reasonably should know | ||
that the financial transaction is designed in whole or | ||
in part: | ||
(i) to conceal or disguise the nature, the | ||
location, the source, the ownership or the control | ||
of the criminally derived property; or | ||
(ii) to avoid a transaction reporting | ||
requirement under State law; or | ||
(1.5) when he or she transports, transmits, or | ||
transfers, or attempts to transport, transmit, or transfer | ||
a monetary instrument: | ||
(A) with the intent to promote the carrying on of | ||
the unlawful activity from which the criminally | ||
derived property was obtained; or | ||
(B) knowing, or having reason to know, that the | ||
financial transaction is designed in whole or in part: | ||
(i) to conceal or disguise the nature, the | ||
location, the source, the ownership or the control | ||
of the criminally derived property; or | ||
(ii) to avoid a transaction reporting | ||
requirement under State law;
or
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(2) when, with the intent to:
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(A) promote the carrying on of a specified criminal | ||
activity as defined
in this Article; or
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(B) conceal or disguise the nature, location, | ||
source, ownership, or
control of property believed to | ||
be the proceeds of a specified criminal
activity as | ||
defined by subdivision (b)(6); or | ||
(C) avoid a transaction reporting requirement | ||
under State law,
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he or she conducts or attempts to conduct a financial |
transaction
involving property he or she believes to be the | ||
proceeds of specified criminal
activity as defined by | ||
subdivision (b)(6) or property used to conduct or
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facilitate specified criminal activity as defined by | ||
subdivision (b)(6).
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(b) As used in this Section:
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(0.5) "Knowing that the property involved in a | ||
financial transaction represents the proceeds of some form | ||
of unlawful activity" means that the person knew the | ||
property involved in the transaction represented proceeds | ||
from some form, though not necessarily which form, of | ||
activity that constitutes a felony under State, federal, or | ||
foreign law, regardless of whether or not such activity is | ||
specified in subdivision (b) (4).
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(1) "Financial transaction" means a purchase, sale, | ||
loan, pledge, gift,
transfer, delivery or other | ||
disposition utilizing criminally derived property,
and | ||
with respect to financial institutions, includes a | ||
deposit, withdrawal,
transfer between accounts, exchange | ||
of currency, loan, extension of credit,
purchase or sale of | ||
any stock, bond, certificate of deposit or other monetary
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instrument, use of safe deposit box, or any other payment, | ||
transfer or delivery by, through, or to a
financial | ||
institution.
For purposes of clause (a)(2) of this Section, | ||
the term "financial
transaction" also
means a transaction | ||
which without regard to whether the funds, monetary
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instruments, or real or personal property involved in the | ||
transaction are
criminally derived, any transaction which | ||
in any way or degree: (1) involves
the movement of funds by | ||
wire or any other means; (2) involves one or more
monetary | ||
instruments; or (3) the transfer of title to any real or | ||
personal
property.
The receipt by an attorney of bona fide | ||
fees for the purpose
of legal representation is not a | ||
financial transaction for purposes of this
Section.
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(2) "Financial institution" means any bank; saving and | ||
loan
association; trust company; agency or branch of a |
foreign bank in the
United States; currency exchange; | ||
credit union, mortgage banking
institution; pawnbroker; | ||
loan or finance company; operator of a credit card
system; | ||
issuer, redeemer or cashier of travelers checks, checks or | ||
money
orders; dealer in precious metals, stones or jewels; | ||
broker or dealer in
securities or commodities; investment | ||
banker; or investment company.
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(3) "Monetary instrument" means United States coins | ||
and currency;
coins and currency of a foreign country; | ||
travelers checks; personal checks,
bank checks, and money | ||
orders; investment securities; bearer
negotiable | ||
instruments; bearer investment securities; or bearer | ||
securities
and certificates of stock in such form that | ||
title thereto passes upon
delivery.
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(4) "Criminally derived property" means: (A) any | ||
property, real or personal, constituting
or
derived from | ||
proceeds obtained, directly or indirectly, pursuant to a
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violation of the Criminal Code of 1961, the Illinois | ||
Controlled Substances
Act, the Cannabis Control Act, or the | ||
Methamphetamine Control and Community Protection Act; or | ||
(B) any property
represented to be property constituting or | ||
derived from proceeds obtained,
directly or indirectly, | ||
pursuant to a violation of this Code, the Illinois
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Controlled Substances Act, the Cannabis Control Act, or the | ||
Methamphetamine Control and Community Protection Act.
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(5) "Conduct" or "conducts" includes, in addition to | ||
its ordinary
meaning, initiating, concluding, or | ||
participating in initiating or concluding
a transaction.
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(6) "Specified criminal activity" means any violation | ||
of Section 20.5-5
(720 ILCS 5/20.5-5) and any violation of | ||
Article 29D of this Code.
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(7) "Director" means the Director of State Police or | ||
his or her designated agents. | ||
(8) "Department" means the Department of State Police | ||
of the State of Illinois or its successor agency.
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(9) "Transaction reporting requirement under State |
law" means any violation as defined under the Currency | ||
Reporting Act.
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(c) Sentence.
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(1) Laundering of criminally derived property of a | ||
value not exceeding
$10,000 is a Class 3 felony;
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(2) Laundering of criminally derived property of a | ||
value exceeding
$10,000 but not exceeding $100,000 is a | ||
Class 2 felony;
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(3) Laundering of criminally derived property of a | ||
value exceeding
$100,000 but not exceeding $500,000 is a | ||
Class 1 felony;
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(4) Money laundering in violation of subsection (a)(2) | ||
of this Section
is a Class X felony;
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(5) Laundering of criminally derived property of a | ||
value exceeding
$500,000 is a
Class 1 non-probationable | ||
felony.
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(d) Evidence. In a prosecution under this Article, either | ||
party may introduce the following evidence pertaining to the | ||
issue of whether the property or proceeds were known to be some | ||
form of criminally derived property or from some form of | ||
unlawful activity: | ||
(1) A financial transaction was conducted or | ||
structured or attempted in violation of the reporting | ||
requirements of any State or federal law; or | ||
(2) A financial transaction was conducted or attempted | ||
with the use of a false or fictitious name or a forged | ||
instrument; or | ||
(3) A falsely altered or completed written instrument | ||
or a written instrument that contains any materially false | ||
personal identifying information was made, used, offered | ||
or presented, whether accepted or not, in connection with a | ||
financial transaction; or | ||
(4) A financial transaction was structured or | ||
attempted to be structured so as to falsely report the | ||
actual consideration or value of the transaction; or | ||
(5) A money transmitter, a person engaged in a trade or |
business or any employee of a money transmitter or a person | ||
engaged in a trade or business, knows or reasonably should | ||
know that false personal identifying information has been | ||
presented and incorporates the false personal identifying | ||
information into any report or record; or | ||
(6) The criminally derived property is transported or | ||
possessed in a fashion inconsistent with the ordinary or | ||
usual means of transportation or possession of such | ||
property and where the property is discovered in the | ||
absence of any documentation or other indicia of legitimate | ||
origin or right to such property; or | ||
(7) A person pays or receives substantially less than | ||
face value for one or more monetary instruments; or | ||
(8) A person engages in a transaction involving one or | ||
more monetary instruments, where the physical condition or | ||
form of the monetary instrument or instruments makes it | ||
apparent that they are not the product of bona fide | ||
business or financial transactions. | ||
(e) Duty to enforce this Article. | ||
(1) It is the duty of the Department of State Police, | ||
and its agents, officers, and investigators, to enforce all | ||
provisions of this Article, except those specifically | ||
delegated, and to cooperate with all agencies charged with | ||
the enforcement of the laws of the United States, or of any | ||
state, relating to money laundering. Only an agent, | ||
officer, or investigator designated by the Director may be | ||
authorized in accordance with this Section to serve seizure | ||
notices, warrants, subpoenas, and summonses under the | ||
authority of this State. | ||
(2) Any agent, officer, investigator, or peace officer | ||
designated by the Director may: (A) make seizure of | ||
property pursuant to the provisions of this Article; and | ||
(B) perform such other law enforcement duties as the | ||
Director designates. It is the duty of all State's | ||
Attorneys to prosecute violations of this Article and | ||
institute legal proceedings as authorized under this |
Article. | ||
(f) Protective orders. | ||
(1) Upon application of the State, the court may enter | ||
a restraining order or injunction, require the execution of | ||
a satisfactory performance bond, or take any other action | ||
to preserve the availability of property described in | ||
subsection (h) for forfeiture under this Article: | ||
(A) upon the filing of an indictment, information, | ||
or complaint charging a violation of this Article for | ||
which forfeiture may be ordered under this Article and | ||
alleging that the property with respect to which the | ||
order is sought would be subject to forfeiture under | ||
this Article; or
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(B) prior to the filing of such an indictment, | ||
information, or complaint, if, after notice to persons | ||
appearing to have an interest in the property and | ||
opportunity for a hearing, the court determines that: | ||
(i) there is probable cause to believe that the | ||
State will prevail on the issue of forfeiture and | ||
that failure to enter the order will result in the | ||
property being destroyed, removed from the | ||
jurisdiction of the court, or otherwise made | ||
unavailable for forfeiture; and | ||
(ii) the need to preserve the availability of | ||
the property through the entry of the requested | ||
order outweighs the hardship on any party against | ||
whom the order is to be entered. | ||
Provided, however, that an order entered pursuant | ||
to subparagraph (B) shall be effective for not more | ||
than 90 days, unless extended by the court for good | ||
cause shown or unless an indictment, information, | ||
complaint, or administrative notice has been filed. | ||
(2) A temporary restraining order under this | ||
subsection may be entered upon application of the State | ||
without notice or opportunity for a hearing when an | ||
indictment, information, complaint, or administrative |
notice has not yet been filed with respect to the property, | ||
if the State demonstrates that there is probable cause to | ||
believe that the property with respect to which the order | ||
is sought would be subject to forfeiture under this Section | ||
and that provision of notice will jeopardize the | ||
availability of the property for forfeiture. Such a | ||
temporary order shall expire not more than 30 days after | ||
the date on which it is entered, unless extended for good | ||
cause shown or unless the party against whom it is entered | ||
consents to an extension for a longer period. A hearing | ||
requested concerning an order entered under this paragraph | ||
shall be held at the earliest possible time and prior to | ||
the expiration of the temporary order. | ||
(3) The court may receive and consider, at a hearing | ||
held pursuant to this subsection (f), evidence and | ||
information that would be inadmissible under the Illinois | ||
rules of evidence.
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(4) Order to repatriate and deposit. | ||
(A) In general. Pursuant to its authority to enter | ||
a pretrial restraining order under this Section, the | ||
court may order a defendant to repatriate any property | ||
that may be seized and forfeited and to deposit that | ||
property pending trial with the Illinois State Police | ||
or another law enforcement agency designated by the | ||
Illinois State Police. | ||
(B) Failure to comply. Failure to comply with an | ||
order under this subsection (f) is punishable as a | ||
civil or criminal contempt of court.
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(g) Warrant of seizure. The State may request the issuance | ||
of a warrant authorizing the seizure of property described in | ||
subsection (h) in the same manner as provided for a search | ||
warrant. If the court determines that there is probable cause | ||
to believe that the property to be seized would be subject to | ||
forfeiture, the court shall issue a warrant authorizing the | ||
seizure of such property. | ||
(h) Forfeiture. |
(1) The following are subject to forfeiture: | ||
(A) any property, real or personal, constituting, | ||
derived from, or traceable to any proceeds the person | ||
obtained directly or indirectly, as a result of a | ||
violation of this Article; | ||
(B) any of the person's property used, or intended | ||
to be used, in any manner or part, to commit, or to | ||
facilitate the commission of, a violation of this | ||
Article; | ||
(C) all conveyances, including aircraft, vehicles | ||
or vessels, which are used, or intended for use, to | ||
transport, or in any manner to facilitate the | ||
transportation, sale, receipt, possession, or | ||
concealment of property described in subparagraphs (A) | ||
and (B), but: | ||
(i) no conveyance used by any person as a | ||
common carrier in the transaction of business as a | ||
common carrier is subject to forfeiture under this | ||
Section unless it appears that the owner or other | ||
person in charge of the conveyance is a consenting | ||
party or privy to a violation of this Article; | ||
(ii) no conveyance is subject to forfeiture | ||
under this Section by reason of any act or omission | ||
which the owner proves to have been committed or | ||
omitted without his or her knowledge or consent; | ||
(iii) a forfeiture of a conveyance encumbered | ||
by a bona fide security interest is subject to the | ||
interest of the secured party if he or she neither | ||
had knowledge of nor consented to the act or | ||
omission; | ||
(D) all real property, including any right, title, | ||
and interest (including, but not limited to, any | ||
leasehold interest or the beneficial interest in a land | ||
trust) in the whole of any lot or tract of land and any | ||
appurtenances or improvements, which is used or | ||
intended to be used, in any manner or part, to commit, |
or in any manner to facilitate the commission of, any | ||
violation of this Article or that is the proceeds of | ||
any violation or act that constitutes a violation of | ||
this Article.
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(2) Property subject to forfeiture under this Article | ||
may be seized by the Director or any peace officer upon | ||
process or seizure warrant issued by any court having | ||
jurisdiction over the property. Seizure by the Director or | ||
any peace officer without process may be made: | ||
(A) if the seizure is incident to a seizure | ||
warrant; | ||
(B) if the property subject to seizure has been the | ||
subject of a prior judgment in favor of the State in a | ||
criminal proceeding, or in an injunction or forfeiture | ||
proceeding based upon this Article; | ||
(C) if there is probable cause to believe that the | ||
property is directly or indirectly dangerous to health | ||
or safety; | ||
(D) if there is probable cause to believe that the | ||
property is subject to forfeiture under this Article | ||
and the property is seized under circumstances in which | ||
a warrantless seizure or arrest would be reasonable; or | ||
(E) in accordance with the Code of Criminal | ||
Procedure of 1963. | ||
(3) In the event of seizure pursuant to paragraph (2), | ||
forfeiture proceedings shall be instituted in accordance | ||
with subsections (i) through (r). | ||
(4) Property taken or detained under this Section shall | ||
not be subject to replevin, but is deemed to be in the | ||
custody of the Director subject only to the order and | ||
judgments of the circuit court having jurisdiction over the | ||
forfeiture proceedings and the decisions of the State's | ||
Attorney under this Article. When property is seized under | ||
this Article, the seizing agency shall promptly conduct an | ||
inventory of the seized property and estimate the | ||
property's value and shall forward a copy of the inventory |
of seized property and the estimate of the property's value | ||
to the Director. Upon receiving notice of seizure, the | ||
Director may: | ||
(A) place the property under seal; | ||
(B) remove the property to a place designated by | ||
the Director; | ||
(C) keep the property in the possession of the | ||
seizing agency; | ||
(D) remove the property to a storage area for | ||
safekeeping or, if the property is a negotiable | ||
instrument or money and is not needed for evidentiary | ||
purposes, deposit it in an interest bearing account; | ||
(E) place the property under constructive seizure | ||
by posting notice of pending forfeiture on it, by | ||
giving notice of pending forfeiture to its owners and | ||
interest holders, or by filing notice of pending | ||
forfeiture in any appropriate public record relating | ||
to the property; or | ||
(F) provide for another agency or custodian, | ||
including an owner, secured party, or lienholder, to | ||
take custody of the property upon the terms and | ||
conditions set by the Director. | ||
(5) When property is forfeited under this Article, the | ||
Director shall sell all such property unless such property | ||
is required by law to be destroyed or is harmful to the | ||
public, and shall distribute the proceeds of the sale, | ||
together with any moneys forfeited or seized, in accordance | ||
with paragraph (6). However, upon the application of the | ||
seizing agency or prosecutor who was responsible for the | ||
investigation, arrest or arrests and prosecution which | ||
lead to the forfeiture, the Director may return any item of | ||
forfeited property to the seizing agency or prosecutor for | ||
official use in the enforcement of laws, if the agency or | ||
prosecutor can demonstrate that the item requested would be | ||
useful to the agency or prosecutor in its enforcement | ||
efforts. When any real property returned to the seizing |
agency is sold by the agency or its unit of government, the | ||
proceeds of the sale shall be delivered to the Director and | ||
distributed in accordance with paragraph (6). | ||
(6) All monies and the sale proceeds of all other | ||
property forfeited and seized under this Article shall be | ||
distributed as follows: | ||
(A) 65% shall be distributed to the metropolitan | ||
enforcement group, local, municipal, county, or State | ||
law enforcement agency or agencies which conducted or | ||
participated in the investigation resulting in the | ||
forfeiture. The distribution shall bear a reasonable | ||
relationship to the degree of direct participation of | ||
the law enforcement agency in the effort resulting in | ||
the forfeiture, taking into account the total value of | ||
the property forfeited and the total law enforcement | ||
effort with respect to the violation of the law upon | ||
which the forfeiture is based. Amounts distributed to | ||
the agency or agencies shall be used for the | ||
enforcement of laws. | ||
(B) (i) 12.5% shall be distributed to the Office of | ||
the State's Attorney of the county in which the | ||
prosecution resulting in the forfeiture was | ||
instituted, deposited in a special fund in the county | ||
treasury and appropriated to the State's Attorney for | ||
use in the enforcement of laws. In counties over | ||
3,000,000 population, 25% shall be distributed to the | ||
Office of the State's Attorney for use in the | ||
enforcement of laws. If the prosecution is undertaken | ||
solely by the Attorney General, the portion provided | ||
hereunder shall be distributed to the Attorney General | ||
for use in the enforcement of laws. | ||
(ii) 12.5% shall be distributed to the Office | ||
of the State's Attorneys Appellate Prosecutor and | ||
deposited in the Narcotics Profit Forfeiture Fund | ||
of that office to be used for additional expenses | ||
incurred in the investigation, prosecution and |
appeal of cases arising under laws. The Office of | ||
the State's Attorneys Appellate Prosecutor shall | ||
not receive distribution from cases brought in | ||
counties with over 3,000,000 population. | ||
(C) 10% shall be retained by the Department of | ||
State Police for expenses related to the | ||
administration and sale of seized and forfeited | ||
property. | ||
(i) Notice to owner or interest holder. | ||
(1) Whenever notice of pending forfeiture or service of | ||
an in rem complaint is required under the provisions of | ||
this Article, such notice or service shall be given as | ||
follows: | ||
(A) If the owner's or interest holder's name and | ||
current address are known, then by either personal | ||
service or mailing a copy of the notice by certified | ||
mail, return receipt requested, to that address. For | ||
purposes of notice under this Section, if a person has | ||
been arrested for the conduct giving rise to the | ||
forfeiture, then the address provided to the arresting | ||
agency at the time of arrest shall be deemed to be that | ||
person's known address. Provided, however, if an owner | ||
or interest holder's address changes prior to the | ||
effective date of the notice of pending forfeiture, the | ||
owner or interest holder shall promptly notify the | ||
seizing agency of the change in address or, if the | ||
owner or interest holder's address changes subsequent | ||
to the effective date of the notice of pending | ||
forfeiture, the owner or interest holder shall | ||
promptly notify the State's Attorney of the change in | ||
address; or | ||
(B) If the property seized is a conveyance, to the | ||
address reflected in the office of the agency or | ||
official in which title or interest to the conveyance | ||
is required by law to be recorded, then by mailing a | ||
copy of the notice by certified mail, return receipt |
requested, to that address; or | ||
(C) If the owner's or interest holder's address is | ||
not known, and is not on record as provided in | ||
paragraph (B), then by publication for 3 successive | ||
weeks in a newspaper of general circulation in the | ||
county in which the seizure occurred. | ||
(2) Notice served under this Article is effective upon | ||
personal service, the last date of publication, or the | ||
mailing of written notice, whichever is earlier. | ||
(j) Notice to State's Attorney. The law enforcement agency | ||
seizing property for forfeiture under this Article shall, | ||
within 90 days after seizure, notify the State's Attorney for | ||
the county, either where an act or omission giving rise to the | ||
forfeiture occurred or where the property was seized, of the | ||
seizure of the property and the facts and circumstances giving | ||
rise to the seizure and shall provide the State's Attorney with | ||
the inventory of the property and its estimated value. When the | ||
property seized for forfeiture is a vehicle, the law | ||
enforcement agency seizing the property shall immediately | ||
notify the Secretary of State that forfeiture proceedings are | ||
pending regarding such vehicle. | ||
(k) Non-judicial forfeiture. If non-real property that | ||
exceeds $20,000 in value excluding the value of any conveyance, | ||
or if real property is seized under the provisions of this | ||
Article, the State's Attorney shall institute judicial in rem | ||
forfeiture proceedings as described in subsection (l) of this | ||
Section within 45 days from receipt of notice of seizure from | ||
the seizing agency under subsection (j) of this Section. | ||
However, if non-real property that does not exceed $20,000 in | ||
value excluding the value of any conveyance is seized, the | ||
following procedure shall be used: | ||
(1) If, after review of the facts surrounding the | ||
seizure, the State's Attorney is of the opinion that the | ||
seized property is subject to forfeiture, then within 45 | ||
days after the receipt of notice of seizure from the | ||
seizing agency, the State's Attorney shall cause notice of |
pending forfeiture to be given to the owner of the property | ||
and all known interest holders of the property in | ||
accordance with subsection (i) of this Section. | ||
(2) The notice of pending forfeiture must include a | ||
description of the property, the estimated value of the | ||
property, the date and place of seizure, the conduct giving | ||
rise to forfeiture or the violation of law alleged, and a | ||
summary of procedures and procedural rights applicable to | ||
the forfeiture action. | ||
(3)(A) Any person claiming an interest in property | ||
which is the subject of notice under paragraph (1) of this | ||
subsection (k), must, in order to preserve any rights or | ||
claims to the property, within 45 days after the effective | ||
date of notice as described in subsection (i) of this | ||
Section, file a verified claim with the State's Attorney | ||
expressing his or her interest in the property. The claim | ||
must set forth: | ||
(i) the caption of the proceedings as set forth on | ||
the notice of pending forfeiture and the name of the | ||
claimant; | ||
(ii) the address at which the claimant will accept | ||
mail; | ||
(iii) the nature and extent of the claimant's | ||
interest in the property; | ||
(iv) the date, identity of the transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property;
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(v) the name and address of all other persons known | ||
to have an interest in the property; | ||
(vi) the specific provision of law relied on in | ||
asserting the property is not subject to forfeiture; | ||
(vii) all essential facts supporting each | ||
assertion; and | ||
(viii) the relief sought. | ||
(B) If a claimant files the claim and deposits with | ||
the State's Attorney a cost bond, in the form of a |
cashier's check payable to the clerk of the court, in | ||
the sum of 10% of the reasonable value of the property | ||
as alleged by the State's Attorney or the sum of $100, | ||
whichever is greater, upon condition that, in the case | ||
of forfeiture, the claimant must pay all costs and | ||
expenses of forfeiture proceedings, then the State's | ||
Attorney shall institute judicial in rem forfeiture | ||
proceedings and deposit the cost bond with the clerk of | ||
the court as described in subsection (l) of this | ||
Section within 45 days after receipt of the claim and | ||
cost bond. In lieu of a cost bond, a person claiming | ||
interest in the seized property may file, under penalty | ||
of perjury, an indigency affidavit which has been | ||
approved by a circuit court judge. | ||
(C) If none of the seized property is forfeited in | ||
the judicial in rem proceeding, the clerk of the court | ||
shall return to the claimant, unless the court orders | ||
otherwise, 90% of the sum which has been deposited and | ||
shall retain as costs 10% of the money deposited. If | ||
any of the seized property is forfeited under the | ||
judicial forfeiture proceeding, the clerk of the court | ||
shall transfer 90% of the sum which has been deposited | ||
to the State's Attorney prosecuting the civil | ||
forfeiture to be applied to the costs of prosecution | ||
and the clerk shall retain as costs 10% of the sum | ||
deposited. | ||
(4) If no claim is filed or bond given within the 45 | ||
day period as described in paragraph (3) of this subsection | ||
(k), the State's Attorney shall declare the property | ||
forfeited and shall promptly notify the owner and all known | ||
interest holders of the property and the Director of State | ||
Police of the declaration of forfeiture and the Director | ||
shall dispose of the property in accordance with law. | ||
(l) Judicial in rem procedures. If property seized under | ||
the provisions of this Article is non-real property that | ||
exceeds $20,000 in value excluding the value of any conveyance, |
or is real property, or a claimant has filed a claim and a cost | ||
bond under paragraph (3) of subsection (k) of this Section, the | ||
following judicial in rem procedures shall apply: | ||
(1) If, after a review of the facts surrounding the | ||
seizure, the State's Attorney is of the opinion that the | ||
seized property is subject to forfeiture, then within 45 | ||
days of the receipt of notice of seizure by the seizing | ||
agency or the filing of the claim and cost bond, whichever | ||
is later, the State's Attorney shall institute judicial | ||
forfeiture proceedings by filing a verified complaint for | ||
forfeiture and, if the claimant has filed a claim and cost | ||
bond, by depositing the cost bond with the clerk of the | ||
court. When authorized by law, a forfeiture must be ordered | ||
by a court on an action in rem brought by a State's | ||
Attorney under a verified complaint for forfeiture. | ||
(2) During the probable cause portion of the judicial | ||
in rem proceeding wherein the State presents its | ||
case-in-chief, the court must receive and consider, among | ||
other things, all relevant hearsay evidence and | ||
information. The laws of evidence relating to civil actions | ||
apply to all other portions of the judicial in rem | ||
proceeding. | ||
(3) Only an owner of or interest holder in the property | ||
may file an answer asserting a claim against the property | ||
in the action in rem. For purposes of this Section, the | ||
owner or interest holder shall be referred to as claimant. | ||
Upon motion of the State, the court shall first hold a | ||
hearing, wherein any claimant must establish by a | ||
preponderance of the evidence, that he or she has a lawful, | ||
legitimate ownership interest in the property and that it | ||
was obtained through a lawful source. | ||
(4) The answer must be signed by the owner or interest | ||
holder under penalty of perjury and must set forth: | ||
(A) the caption of the proceedings as set forth on | ||
the notice of pending forfeiture and the name of the | ||
claimant; |
(B) the address at which the claimant will accept | ||
mail; | ||
(C) the nature and extent of the claimant's | ||
interest in the property; | ||
(D) the date, identity of transferor, and | ||
circumstances of the claimant's acquisition of the | ||
interest in the property; | ||
(E) the name and address of all other persons known | ||
to have an interest in the property; | ||
(F) all essential facts supporting each assertion; | ||
and | ||
(G) the precise relief sought.
| ||
(5) The answer must be filed with the court within 45 | ||
days after service of the civil in rem complaint. | ||
(6) The hearing must be held within 60 days after | ||
filing of the answer unless continued for good cause.
| ||
(7) The State shall show the existence of probable | ||
cause for forfeiture of the property. If the State shows | ||
probable cause, the claimant has the burden of showing by a | ||
preponderance of the evidence that the claimant's interest | ||
in the property is not subject to forfeiture.
| ||
(8) If the State does not show existence of probable | ||
cause, the court shall order the interest in the property | ||
returned or conveyed to the claimant and shall order all | ||
other property forfeited to the State. If the State does | ||
show existence of probable cause, the court shall order all | ||
property forfeited to the State. | ||
(9) A defendant convicted in any criminal proceeding is | ||
precluded from later denying the essential allegations of | ||
the criminal offense of which the defendant was convicted | ||
in any proceeding under this Article regardless of the | ||
pendency of an appeal from that conviction. However, | ||
evidence of the pendency of an appeal is admissible. | ||
(10) An acquittal or dismissal in a criminal proceeding | ||
does not preclude civil proceedings under this Article; | ||
however, for good cause shown, on a motion by the State's |
Attorney, the court may stay civil forfeiture proceedings | ||
during the criminal trial for a related criminal indictment | ||
or information alleging a money laundering violation. Such | ||
a stay shall not be available pending an appeal. Property | ||
subject to forfeiture under this Article shall not be | ||
subject to return or release by a court exercising | ||
jurisdiction over a criminal case involving the seizure of | ||
such property unless such return or release is consented to | ||
by the State's Attorney. | ||
(11) All property declared forfeited under this | ||
Article vests in this State on the commission of the | ||
conduct giving rise to forfeiture together with the | ||
proceeds of the property after that time. Any such property | ||
or proceeds subsequently transferred to any person remain | ||
subject to forfeiture and thereafter shall be ordered | ||
forfeited. | ||
(12) A civil action under this Article must be | ||
commenced within 5 years after the last conduct giving rise | ||
to forfeiture became known or should have become known or 5 | ||
years after the forfeitable property is discovered, | ||
whichever is later, excluding any time during which either | ||
the property or claimant is out of the State or in | ||
confinement or during which criminal proceedings relating | ||
to the same conduct are in progress. | ||
(m) Stay of time periods. If property is seized for | ||
evidence and for forfeiture, the time periods for instituting | ||
judicial and non-judicial forfeiture proceedings shall not | ||
begin until the property is no longer necessary for evidence. | ||
(n) Settlement of claims. Notwithstanding other provisions | ||
of this Article, the State's Attorney and a claimant of seized | ||
property may enter into an agreed-upon settlement concerning | ||
the seized property in such an amount and upon such terms as | ||
are set out in writing in a settlement agreement. | ||
(o) Property constituting attorney fees. Nothing in this | ||
Article applies to property which constitutes reasonable bona | ||
fide attorney's fees paid to an attorney for services rendered |
or to be rendered in the forfeiture proceeding or criminal | ||
proceeding relating directly thereto where such property was | ||
paid before its seizure, before the issuance of any seizure | ||
warrant or court order prohibiting transfer of the property and | ||
where the attorney, at the time he or she received the property | ||
did not know that it was property subject to forfeiture under | ||
this Article. | ||
(p) Construction. It is the intent of the General Assembly | ||
that the forfeiture provisions of this Article be liberally | ||
construed so as to effect their remedial purpose. The | ||
forfeiture of property and other remedies hereunder shall be | ||
considered to be in addition to, and not exclusive of, any | ||
sentence or other remedy provided by law. | ||
(q) Judicial review. If property has been declared | ||
forfeited under subsection (k) of this Section, any person who | ||
has an interest in the property declared forfeited may, within | ||
30 days after the effective date of the notice of the | ||
declaration of forfeiture, file a claim and cost bond as | ||
described in paragraph (3) of subsection (k) of this Section. | ||
If a claim and cost bond is filed under this Section, then the | ||
procedures described in subsection (l) of this Section apply. | ||
(r) Burden of proof of exemption or exception. It is not | ||
necessary for the State to negate any exemption or exception in | ||
this Article in any complaint, information, indictment or other | ||
pleading or in any trial, hearing, or other proceeding under | ||
this Article. The burden of proof of any exemption or exception | ||
is upon the person claiming it. | ||
(s) Review of administrative decisions.
All administrative | ||
findings, rulings, final determinations, findings, and | ||
conclusions of the State's Attorney's Office under this Article | ||
are final and conclusive decisions of the matters involved. Any | ||
person aggrieved by the decision may obtain review of the | ||
decision pursuant to the provisions of the Administrative | ||
Review Law and the rules adopted pursuant to that Law. Pending | ||
final decision on such review, the administrative acts, orders, | ||
and rulings of the State's Attorney's Office remain in full |
force and effect unless modified or suspended by order of court | ||
pending final judicial decision. Pending final decision on such | ||
review, the acts, orders, and rulings of the State's Attorney's | ||
Office remain in full force and effect, unless stayed by order | ||
of court. However, no stay of any decision of the | ||
administrative agency shall issue unless the person aggrieved | ||
by the decision establishes by a preponderance of the evidence | ||
that good cause exists for the stay. In determining good cause, | ||
the court shall find that the aggrieved party has established a | ||
substantial likelihood of prevailing on the merits and that | ||
granting the stay will not have an injurious effect on the | ||
general public.
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(Source: P.A. 93-520, eff. 8-6-03; 94-364, eff. 7-29-05; | ||
94-556, eff. 9-11-05; revised 8-19-05.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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